89 F. 510 | D.S.C. | 1898
The opinion filed August 17th, on the preliminary hearing (89 Fed. 99), based upon the testimony in preparatorio, sets forth the facts relating to the conduct of the Newfoundland up to the evening of July 19th, when she was captured off the port of Havana, and the cause is now before me upon an order for further proof. As was stated in that opinion, a mere suspicion of an intention to violate the blockade, however well founded, is not sufficient ground for condemnation. There must be some overt act de
Sir William Scott is the greaL luminary from which we derive most of our light on the law of prize. He regarded the breaking of a blockade as an act of deep turpitude. In that opinion I do not agree, perhaps from an early experience of, and modest participation in, some of its benefits; and 1 am aware that, notwithstanding his great ability, his purity of character, and charming manners, he did not escape the censure of his contemporaries, and that the severity of his judgments led to the charge of “ministerial subserviency.” In The Heutralitet, (> O. Rob. Adm. 35, with a vigor and beauty of diction which must charm, if it does not convince, he thus states the law:
"It will not bo necessary in the present case to lay down a general principle on this point, bnt 1 am disposed to agree to a position advanced in argument that a belligerent is not called upon to admit that neutral ships can innocently place themselves In a situation where they may with impunity break the blockade, whenever they please. If the belligerent country has a, right to impose a blockade, it must be justified in the necessary means of enforcing that right; and if a vessel could, under the pretense of going further, approach cy-pres, close up to the blockade port, so as to be enabled to slip in without obstruction, it would be impossible that any blockade could be maintained. It would, I think, be no unfair rule of evidence to hold as a presumption de jure that she goes there with an intention of breaking the blockade; and if such an inference may possibly operate with severity in particular cases, where the parties are innocent in their intention, it is a severity necessarily connected with the rules of evidence, and essential to the effectual exercise of this right of war.”
“I trust that it has not escaped my anxious recollection for one moment what it is that the duty of my station calls for from me, namely, to consider myself as stationed here, not to deliver occasional and shifting opinions to serve present purposes of particular national interest, but to administer with indifference that justice which the law of nations holds out, without distinction, to independent states, some happening to he neutral and some to he belligerent. The seat of judicial authority is, indeed, locally here, in the belligerent country, according to the known law .and practice of nations; but the law itself has no locality. It is the duty of the person who sits here to determine this question exactly as he would determine the same question if sitting at Stockholm; to assert no pretensions on the part of Great Britain which he would not allow to Sweden in the same circumstances, and to impose no duties on Sweden, ás a neutral country, which he would not admit to belong to Great Britain in the same character.” 1 C. Rob. Adm. 295.
With this statement of the principles of law generally applicable in cases of this nature, the circumstances attending the capture will now be considered, as bearing upon the charge that the Newfoundland was loitering in the neighborhood of Havana with intent to enter. Lieut. Evans, in command of the U. S. S. Tecumseh, testifies that about 5 o’clock in the afternoon of July 19th, while on his station in the blockading squadron, 6 or 8 miles to the north and eastward of Havana light, and about 3-J miles from the nearest shore, he sighted the Newfoundland moving towards him on a westerly course; that he immediately stood towards her at full speed, — about 10 knots, — . and overhauled her, sending his mate aboard to examine her papers. He estimates his position at the time as being latitude 23° 15' N., longitude 82° 13', and on a diagram prepared by the navigating officer of the Mayflower, and offered in evidence, he fixes her position as being unquestionably within a dotted circle, — thinks that it was about the center of the circle, but, having taken no measurements at the time, would not undertake to fix it closer than within three miles. He fixes the hour of boarding at 5:35, and says that he left her “in the vicinity of 6 o’clock,” she bearing off on a course about west by one-half north. Mate Nickerson of the Tecumseh fixes her position at the time of sighting the Newfoundland at 6 to 8 miles from Morro light, and about 3£ to 4 miles from the nearest shore, the Newfoundland being at that time about 9 miles to the northward and eastward,' sailing west; the Tecumseh sailing about 4 miles to overhaul her. He fixes the hour of boarding at 5:35 exactly, and says that he returned aboard his ship about 5:50. He failed to enter upon the log of the Newfoundland the hour of boarding, as is usually, and always should be, done. He locates the point of boarding upon the diagram as does Lieut. Evans; saw the Newfoundland for about 10 minutes after she stood off, one or two points to the north of west; and says, “It began to settle down dusk then.” Ensign Pratt, of the Mayflower, whose watch began at 8 o’clock, testifies that about 8:20 he picked up a small light bearing north by west from him, reported the same to the commanding officer, who ordered the ship headed for it north by west, and the engines rung ahead full speed. Shortly after heading for it, the light was lost, but, standing on the same course about 20
The testimony from the Newfoundland, relating to the same matter, will now be stated. Capt. Malcolm, the master, says that he was boarded by the mate of the Teeumseh 14 miles off shore, — off the nearest land,- — while sailing on a westward course; that the boarding officer, after examining his papers, advised him not to- go any nearer the land, lest: he should get a shell into him, and left him'at 6:3!); that thereafter he stood on a course one point north of west until 8 o’clock, when the Havana light bore about south by west, and from that time he put his ship back on a course due west, which he followed uniil boarded by the Mayflower. He exhibits a chart on which he has marked his course, and says that at 8:30 he passed Havana light, being 17¿ miles from it; that at 10 o’clock, when boarded by
It thus appears that there is a wide divergence in the testimony as to the point at which the Newfoundland was when boarded by the Tecumseh, and some divergence as to the time of such boarding. Lieut. Evans and his mate fix this location within a circle whose radius is 3 miles. They say that they are certain as to her location within 3 miles, and believe that she was about the center of that circle, which is 10-3, miles from Morro light. Gapt. Malcolm and his mate fix the location at a point 24 miles from Morro light, 13} miles from the center of the circle above referred to, and 10£ miles from that point of the circle nearest to the Newfoundland. There is a marked discrepancy, and the first point to be decided is, which is correct. Applying the usual tests by which testimony is weighed,— the intelligence of the witnesses, their opportunities for knowing the truth, the likelihood of error arising from considerations of interest, and other influences which commonly sway men’s minds, — there can be no doubt that there is a preponderance of probability in favor of that side which, having no interest in the' controversy, has the greater opportunity of knowledge. Lieut. Evans and his mate were on cruising grounds with which they were familiar. There could be no difficulty in ascertaining their position from the bearing of Morro, which was in plain sight, day and night. They were within three or four miles of the shore, with well-defined objects from wdiich bearings could be had. It was their manifest duty to know where they were, for they had to keep within certain prescribed limits. They are men of education, character, and intelligence, and their testimony cannot be discredited without imputing to them a reckless carelessness for which there is no warrant. Neither Capt. Malcolm nor his mate were familiar with the locality. The former had once before been to Havana, the latter never. Their interest is obvious. I have no difficulty in coming to the conclusion that the preponderance of evidence fixes the position of the Newfoundland within the described circle when boarded by the Tecumseh. I am not so clear as to the time. The mate Nickerson fixes it at 5:35 precisely, and says that he returned to the Tecumseh at 5:50; but he says that he watched the Newfoundland for about 10 minutes after she left, when “it began to settle down dusk.” The sun set in that latitude on that day about 6:3Q, and there is little twilight. The officers of the Newfoundland fix the
The next incriminating charge is that the Newfoundland was sailing without lights. Ensign Pratt, who first sighted her, says he picked up a small light. All the witnesses from the Mayflower describe this light as that from an ordinary lantern, and not the mast
We will now look into the character and conduct of the Newfoundland, to see whether her presence off Havana is consistent with innocent intent. She is a small steamship, lately employed in the sealing business. She sailed from Halifax, July 9 th, loaded with a cargo' of provisions, under command of Capt. Malcolm, who was employed for that voyage. She had two clearances, one for Kingston and one for Vera Cruz. Commander Mackenzie; testifies that it is not the practice of any American custom house to give two clearances. Capt. Malcolm says that this is not unusual in Halifax, and that he has generally had separate clearances for separate ports, sometimes five or six, whenever he had cargo for each. We have no statute prescribing any regulation on this subject, and wherever a ship has separate cargo for separate ports I can see no reason why she should not have a clearance for each, and I am informed that it is the custom at this port to give such separate clearances. While I cannot hold that separate clearances for Kingston and Vera Cruz were in themselves suspicious, it is a cause of grave and just suspicion that her real and primary destination was to neither of those ports, as subsequent events proved. Capt. Malcolm, in his testimony in preparatorio, said that his verbal instructions were to sail for Caibairien or Ragua la Grande, and. if those ports were blockaded,'to go to Kingston, and cable for orders. For reasons, into which it is not the province of this court to inquire, neither Ragua nor Caibairien were included among the ports blockaded under the proclamation of the president, and he had the right to go to either. Whether in so doing without proper clearances he would have incurred penalties under the municipal regulations of Great Britain or of Spain is not within the scope of this inquiry; certain it is that he would have committed no offense cognizable here. Taking his course to the southward, he next appears off Tvuevitas, where he is hoarded by Lieut. Titus of U. S. S. Badger, and is informed by him that the whole coast of Cuba is